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The Qrdinanee of 1787. 



THE 



I OF 1T87. 



,y 



BY 



FREDERICK D. STONE, 

LIBRARIA^f OF THE HTSTORICAT. SOCIETY OF PENNSYLVANIA. 



reprinted prom 
"The Pennsylvania Magazine op History and Biography." 



PHILADELPHIA: 

18 89. 



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(N fiXCHANGl 



THE ORDINANCE OF 1787. 



BY FREDERICK D. STONE. 



In the April number of this magazine for the year 1888 
we printed some extracts from the " Life, Journals, and 
Correspondence of Manasseh Cutler," describing his visit to 
New York and Philadelphia in the year 1787, and took 
occasion to say that we could not agree with the views ex- 
pressed elsewhere in the volumes, that in the formation of 
the Ordinance of 1787 for the government of the North- 
west territory Dr. Cutler rendered an all- important influ- 
ence. It was our intention to have returned to the subject 
long before this, and, now that it is again taken up, we find 
that it has been the theme of a number of essays and ad- 
dresses called forth by the celebration in 1888 of the cen- 
tennial anniversary of the settlement at Marietta under the 
auspices of the Ohio Company. These investigations have 
been so numerous that any further consideration of the 
matter may look like a work of supererogation ; but in all 
that has appeared, that we have met with, the same conclu- 
sion has been reached, that when Dr. Cutler visited New 
York in July, 1787, to negotiate for the purchase of a tract 
of land for the Ohio Company, he shaped the Ordinance 
adopted by Congress on July 13, 1787, for the government 
of the Northwest territory. Some indeed go so far as to 
argue that Dr. Cutler brought the Ordinance with him from 
New England and made the adoption of certain provisions 
found in it a sine qua non in the purchase of land. 

The most thorough piece of work called forth in this 
discussion is the address by John M. Merriam, Esq., before 
the American Antiquarian Society, entitled "The Legisla- 
tive History of the Ordinance of 1787," in which he shows 
that nearly every distinctive feature of the Ordinance was 



4 The Ordinance of 1787. 

before Congress, at one time or another before it was framed. 
Towards the close of his argument, however, Mr. Merriam 
falls in line with the other investigators, and after quoting 
from the diary of Dr. Cutler, describing a visit he paid to 
General Rufus Putnam previous to his journey to New 
York, Mr. Merriam says, "These passages from Cutler's 
diary show conclusively that he went to New York armed 
with great power, and for definite purposes which had been 
discussed and agreed upon with Rufus Putnam before he 
started. The precise articles in the final Ordinance which 
were due to the foresight and wisdom of Putnam and Cutler 
cannot now be precisely pointed out. It seems probable, 
however, in view of the earlier stand taken by Putnam and 
Pickering and their associates, that provisions for the support 
of religion and education, and the prohibition of slavery, 
were among the terms of the negotiation. It is only upon 
this supposition that the readiness of Congress to agree 
upon the sixth article (that prohibiting slavery) can be ex- 
plained." 

The Hon. George F. Hoar, in his oration delivered at 
Marietta, April 7, 1888, after reviewing the whole subject, 
said : " From this narrative I think it nmst be clear that the 
plan which Rufus Putnam and Manasseh Cutler settled in 
Boston was the substance of the Ordinance of 1787. I do not 
mean to imply that the detail or the language of the great 
statute was theirs. But I cannot doubt that they demanded 
a constitution, with its unassailable guarantees for civil 
libert}^ such as Massachusetts had enjoyed since 1780, and 
such as Virginia had enjoyed since 1776, instead of the 
meagre provisions for a government to be changed at the 
will of Congress or of temporary popular majorities, which 
was all Congress had hitherto proposed, and this constitu- 
tion secured by an irrevocable compact, and that this de- 
mand was an inflexible condition of their dealing with 
Congress at all." 

Dr. William F. Poole, in his address delivered as presi- 
dent of the American Historical Association, at a meeting 
of that body at Washington, December 26, 1888, after re- 



The Ordinance of 1787. 5 

viewing the history of the Ordinance of 1787, summed the 
matter up in the following language : 

. '• In view of its sagacity and foresight, its adaptation for 
the purpose it was to accomplish and the rapidity with which 
it was carried through Congress, the most reasonable expla- 
nation, as it seems to me, of the origin of the Ordinance is, 
that it was brought from Massachusetts by Dr. Cutler, with 
its principal and main features developed : that it was laid 
before the land committee of Congress on July 9 as a mie 
<p.ia non in the proposed land purchase, and that the only 
work of the Ordinance Committee was to put it in a form 
suitable for enactment. The original draft may have been 
made by either of the eminent men who were the directors 
of the Ohio Company, — Eufiis Putnam, Manasseh Cutler, 
or Samuel Holden Parsons, — but more likely was their joint 
production. Dr. Cutler says that on the day he left Boston 
he met General Putnam and ' settled the principles on which 
I am to contract with Congress for lands, on account of the 
Ohio Company.' In passing through Middletown, Conn., 
on his way to ^ew York, he spent one day with General 
Parsons, and says, in his journal, • It was nine o'clock this 
morninor before General Parsons and I had settled all our 
matters with respect to my business with Congress.'' They 
were the persons most interested in the enactment of such 
an Ordinance ; and without it their scheme of Western set- 
tlement would have failed. The Xew England emigrants 
must feel that they were taking with them to the North- 
west their own laws and institutions. Hence the draft was 
made largely from the Massachusetts Constitution of 1780. 
which these settlers had helped to frame. By this consti- 
tution slavery was abolished, personal rights secured, insti- 
tutions of religion and education fostered, and the most 
advanced principles in the settlement of estates and the 
administration of justice established. Mr. Dane, as the 
Massachusetts member of the committee, and most familiar 
with its laws, was the person to whom, the duty of writing 
the final draft and reporting it to Congress would naturally 
be assigned." Mr. Dane, Dr. Poole says, in another part 



6 The Ordinance of 1787. 

of his address, was the " scribe of the committee," and 
again, " Mr. Dane's record does not favor the theory that 
the Ordinance was his." 

The editor of the life of Cutler, while treating the matter 
more generally, and endeavoring to trace the idea of the erec- 
tion of a State in the Western territory and its government 
from its earliest inception, is scarcely less positive in the 
opinion he expresses that nearly every distinctive feature in 
the Ordinance was so in accord with the known sentiments of 
Cutler and his associates that it is obvious that these features 
were the result of their influence, and that the Ohio Com- 
pany of Associates was organized " for the purpose of carry- 
ing into effect the long-cherished objects connected with 
their future homes." Dr. Cutler, he continues, in dealing 
with Congress, " kept steadily in view the two great objects 
of his mission : one was to procure land upon terms that 
would be acceptable to the Associates ; the other to secure 
such organic law as would make the new State a congenial 
home for himself and his neighbors." And again, " It was 
just as necessary to yield to the wishes and plans of the As- 
sociates in the governmental system that was to be imposed 
upon their future homes as it was to meet their views in 
regard to land purchase." And " When Dr. Cutler placed 
this scheme before Congress he could appeal honestly and 
urgently for the establishment there of such civil and social 
institutions as would meet his own wants and those of his 
neighbors as pioneer settlers." 

The Rev. Edward Everett Hale, in an address at Marietta, 
after asserting that Dr. Cutler " succeeded in doing in four 
days what had not been done in four years before," said, 
" What was the weight which Manasseh Cutler threw into 
the scale ? It was not wealth ; it was not the armor of the 
old time. It was simply the fact, known to all men, that the 
men of New England would not emigrate into any region 
where labor and its honest recompense is dishonorable. 

" The New England men will not go where it is not hon- 
orable to do an honest day's work, and for that honest day's 
work to claim an honest recompense. They never have 



The Ordinance of 17S7. 7 

done it, and they never will do it ; and it was that potent 
fact, known to all men, that Manasseh Cutler had to urge in 
his private conversation and in his diplomatic work. When 
he said, ' I am going away from New York, and my con- 
stituents are not going to do this thing,' he meant exactly 
what he said. They were not going to any place where 
labor was dishonorable, and where workmen were not 
recognized as freemen." 

Before entering into any argument or expressing any dis- 
sent to the above views we will endeavor, for the benefit of 
those unacquainted with the facts of the case, to give briefly 
and impartially the essential portions of the evidence con- 
nected with the history of the " great Ordinance." 

As early as 1783, when the army of the Revolution was 
about to be disbanded, a number of officers from Massa- 
chusetts, New Hampshire, Connecticut, New Jersey, and 
Maryland petitioned Congress for a grant of land on the 
Ohio, on which they proposed to settle. It was their inten- 
tion to establish a " new State," and for this object an agree- 
ment was drawn up, one clause of which provided for the 
exclusion of slavery from the State to form an essential and 
irrevocable part of the constitution. This, it is believed, 
was the work of Timothy Pickering, who, with Rufus Put- 
nam, was active in forwarding the proposed settlement. 
The company also hoped to obtain a grant of land for the 
support of the ministry and schools. The Western terri- 
tory, however, had not at that time been ceded to Congress 
by the several States claiming it, and nothing was done in 
the matter. 

In 1784, after Virginia had ceded her right to the Western 
territories to the United States, a report was presented to 
Congress by a committee appointed to prepare a plan for 
the temporary government of the Western territory. This 
is known as Jefiferson's plan, as it was drafted by him. It 
provided for the government of the territory ceded or to 
be ceded by the individual States, whensoever the same 
shall have been purchased of the Indian inhabitants and 



8 The Ordinance of 1787. 

ofiered for sale by the United States. By it the territory 
ceded was divided into ten States, and each one was enabled 
to adopt the constitution of any of the original States for its 
temporarj^ government, subject to such amendments as a 
Legislature might suggest. Each State, thus organized, 
could send a member to Congress, with the right of de- 
bating, but not of voting, and upon gaining a population of 
twenty thousand was to be admitted into the Union under 
a permanent constitution, and to full representation in Con- 
gress when its population should equal that of the least 
numerous of the original States. It provided that both the 
temporary and permanent constitutions of the States be es- 
tablished on the principles that they should forever remain a 
part of the United States, and that their governments should 
be republican in form ; that they should be subject to the 
Articles of Confederation the same as the original States 
were, and obliged to pay their share of the Federal debt as 
apportioned by Congress. They were not to interfere with 
the primary disposal of the soil by the United States, and 
under the temporary government the lands of non-residents 
were not to be taxed higher than those of residents. 

The articles of this Ordinance were made a compact 
between the original States and the States it was proposed 
to form. In Jetferson's original report the following clause 
was made one of the principles on which the State consti- 
tutions should be formed, and a part of the compact : 
" That after the year 1800 of the Christian era there shall 
be neither slavery nor involuntary servitude in any of the 
said States, otherwise than in punishment of crimes whereof 
the party shall have been duly convicted to have been per- 
sonally guilty." It was, however, stricken out by Congress, 
and the Ordinance as amended remained in force until it 
was repealed by the final clause of that of 1787. 

On March 8, 1785, Timothy Pickering wrote to Rufus 
King, then in Congress, earnestly protesting against the ad- 
mission of slavery into the Western territory. " For God's 
sake, then," he wrote, " let one more effort be made to pre- 
vent so terrible a calamity ! The fundamental constitutions 



The Ordinance of 1787. 9 

of those States are yet liable to alterations, and this is prob- 
ably the only time when the evil can certainly be prevented." 
In the same letter he said, " I observe there is no provision 
made for ministers of the Gospel, nor even for schools and 
academies, though after the admission of slavery it was 
right to say nothing about Christianity." 

Eight days after this letter was written, King offered the 
following resolution in Congress : " That there shall be 
neither slavery nor involuntary servitude in any of the States 
described in the resolves of Congress of the 23d of April, 
1784, otherwise than in punishment of crimes, whereof the 
party shall have been personally guilty ; and that this reg- 
ulation shall be an article of compact, and remain a fun- 
damental principle of the constitutions between the thirteen 
original Slates, and each of the States described in the said 
resolve of the 23d of April, 1784." 

The resolution was referred to a committee of three, of 
which King was chairman, his colleagues being Howell and 
EUery, of Rhode Island. Their report was presented on 
April 6. It went back to Jefferson's proposition of 1784, 
prohibiting slavery after the year 1800, and coupled with 
it the fugitive slave clause as subsequently incorporated in 
the Ordinance of 1787. Its operation was confined to the 
proposed States. It was to be considered on the 14th of 
April, but a land ordinance was then being formed by Gray- 
son, who on May 1 wrote to Madison that King would re- 
serve his resolution prohibiting slavery in the new States 
until the land ordinance was passed. King's resolution does 
not appear to have received further attention. The land 
ordinance, that Grayson spoke of, as first framed reserved 
the central section of each township for the support of 
schools, and the one north of it for the support of religion, 
but as the act passed on May 20, the provision for the sup- 
port of religion was omitted. 

In 1786 a committee was appointed to report a temporary 
government for the "Western States." The object was to 
supply a uniform temporary government for the new States, 
in which the persons and rights of settlers would be pro- 



10 The Ordinance of 17S7. 

tected, in place of permitting the citizens to select tlie con- 
stitution and laws of one of the older States and adapting 
it to their purposes by amendments. Monroe was chairman 
of the committee, and its report bears his name. It recom- 
mended a redivision of the territory as soon as the consent 
of the individual States that ceded it had been obtained. 
It proposed that Congress should appoint a governor, a 
council of five members, and a secretary for the territor}^ or 
States. The duties of these oflicers were defined. It also 
provided for a court of five members, who should have 
common-law and chancery jurisdiction, and an existing code 
of laws was to be adopted to suit the occasion. When a 
population of a certain size was reached by a State, a House 
of Representatives was to be chosen to act with the gover- 
nor and council, and from that time until the State was 
fully represented in Congress it could maintain a sitting 
member. The limit of the temporary government was 
fixed as in Jefferson's plan. Nearly all of its provisions 
were adopted, but the clause making it a compact binding 
on both the old and new States was omitted. The plan as 
presented to Congress on May 10 was a mere outline, and 
it was recommitted. Before it was completed, petitions 
were received from the inhabitants of the Western territory, 
praying for the establishment of a government that would 
make some provisions for both criminal and civil justice. 
Monroe's colleagues were Johnson, of Connecticut ; King, 
of Massachusetts ; and Kean and (Charles) Pinckney, of 
South Carolina. Before the committee had completed its 
report, Monroe, King, and Kean were succeeded by Me- 
lancthon Smith, of New York ; Henry, of Maryland; and 
Dane, of Massachusetts. The committee thus formed, of 
which Johnson was chairman, presented its report on the 
2l8t of September. It was an elaboration of Monroe's plan. 
It provided for a governor, council, secretary, a court, and 
the adoption of a code of laws. The duties of the officers 
were defined, and were about the same as Monroe proposed. 
The court was to consist of three members. A House of 
Representatives was to be elected as soon as five thousand 



The Ch'dinance of 1787. 11 

free male adults resided within a district. The qualifications 
for a representative were based on Monroe's report. The 
inhabitants were to pay part of the Federal debts, con- 
tracted, or to be contracted, as the citizens of the other 
States, and were entitled to the benefits of the act of habeas 
corpus and of the trial by jury. No provision was made 
for a non-voting member in Congress, and the States could 
not be admitted to full representation until their population 
was equal to one-thirteenth part of the citizens of the origi- 
nal States and the consent of Congress. Like Monroe's 
plan, it contained no clause making it a joint compact 
between the States, as proposed by Jefiferson. 

It was discussed on the 29th, and then all sight is lost 
of it until the 26th of April, 1787, when it was presented 
by the same committee to the new Congress. It reached 
a second reading on May 9, and was made the order of 
business for the 10th. On that day its consideration was 
postponed, and on the 12th it was found that so many mem- 
bers had left New York to attend the Federal Convention 
in Philadelphia that a quorum did not attend. No business 
was transacted after that until July 4. 

While the attention of Congress was thus directed to the 
importance of furnishing a more eflicient form of govern- 
ment for the Western territory, than the Ordinance of 1784, 
events elsewhere show that the subject of Western emigra- 
tion was being seriously considered. 

In January, 1786, Rufus Putnam and Benjamin Tupper, 
two of the signers of the petition to Congress asking for a 
grant of land in 1783, issued a card in a newspaper of the 
day, inviting the Massachusetts soldiers who were entitled 
to land in the Western territory, under an act of Congress, 
to meet together and organize an association to be known 
as The Ohio Company, to form a settlement in the Ohio 
country. The meeting was held on March 1, and articles 
of agreement were entered into, one of which provided for 
" the purchase of lands in some one of the proposed States 
northwesterly of the river Ohio, as soon as those lands are 
surveyed and exposed for sale by the commissioners of Con- 



12 'The Ordinance of 1787. 

gress, according to the ordinance of that honorable body, 
passed the 20th of May, 1785, or on any other plan that 
may be adopted by Congress not less advantageous to the 
company." Tlie scheme was well received, and attracted 
wide attention ; but it was found that under the land ordi- 
nance of May 20, 1785, it would not be possible for the 
company to purchase a compact body of land, and the price 
asked by Congress was considered too high. To overcome 
these difficulties, on March 8, 1787, a committee composed 
of General Samuel Holden Parsons, General Rufus Putnam, 
and the Rev. Manasseh Cutler, was appointed to make ap- 
plication to Congress " for a private purchase of land," or, 
in other words, for a purchase on terms different from those 
proposed in the ordinance. 

Parsons was selected to bring the matter before Congress, 
and on the 9th of May he presented his memorial to that 
body. Before it was acted upon, however, so many mem- 
bers of Congress absented themselves to attend the Federal 
Convention in Philadelphia that it was impossible to obtain 
a quorum, and he returned to his home in Connecticut. 
The proposition he made to Congress did not, it appears 
from a letter of Cutler, meet with the approval of the com- 
pany, as they did not think well of the location which he 
proposed. Suspicions were indeed excited that General 
Parsons might have views separate from the interest of the 
company, and it was decided that as soon as Cutler learned 
that a quorum of Congress had assembled he should attend 
as agent of the company in place of Parsons. In the latter 
part of June he prepared to visit New York. On June 25 
he was at Cambridge, and records in his journal that he rode 
to Boston, " conversed with General Putnam. Received let- 
ters. Settled the principles on which I am to contract for 
lands on account of the Ohio Company. . . . Left Boston 
for Dedham half-after six." 

On the evening of the 30th he reached the home of Gen- 
ral Parsons. The next day being Sunday, he preached for 
Mr. Huntington, and spent the afternoon with him, and on 
July 2 he recorded : "It was 9 o'clock this morning before 



The Ordinance of 1787. 13 

General Parsons and I had settled all our matters with 
respect to my business with Congress." 

On July 5 he arrived in New York, and on the 6th he 
says : " At 11 o'clock I was introduced to a number of mem- 
bers on the floor of Congress chamber in the City Hall by 
Colonel Carrington, member from Virginia. Delivered my 
petition for purchasing lands for the Ohio Company, and 
proposed terms and conditions of purchase. A committee 
was appointed to agree on terras of negotiation and report 
to Congress. 

Monday, July 9, " Attended the Committee before Con- 
gress opened." The same day he dined with some clergy- 
men at Dr. Rodgers's. " It w^as with reluctance," he says, 
" that I took my leave of this agreeable and sociable company 
of clergymen, but my business rendered it necessary. At- 
tended the committee at Congress Chamber. Debated on 
terms, but were so wide apart that there appears little pros- 
pect of closing a contract." On the same day Congress 
referred the report, that had been interrupted on its third 
reading on May 10, to a new committee, consisting of Car- 
rington, Dane, Richard Henry Lee, Kean, and Smith. 

July 10. " This morning," w^rites Cutler, " another confer- 
ence with the committee. . . . As Congress was now engaged 
in settling the form of government for the Federal territory, 
for which a bill had been prepared and a copy sent to me, 
with leave to make remarks and propose amendments, and 
which I had taken the liberty to remark upon, and to pro- 
pose several amendments, I thought this the most favorable 
opportunity to go on to Philadelphia. Accordingly, after I 
had returned the bill with my observations, I set out at 7 
o'clock, and crossed North River to Paulus Hook." 

The Ordinance Committee made its report on July 11. 
It was read a second time on the 12th and a third time on 
the 13th, when it finally passed. This was the great Ordi- 
nance. It provided that the territory northwest of the Ohio 
River, while under temporary government, should be one 
district, to be divided into two when found necessary. It 
provided for the distribution of estates of residents and non- 



14 The Ordinance of 1787. 

residents dying intestate, a widow to receive one-third of the 
personal estate and a life-interest of one-third of the real 
estate, the remainder being equally divided between the chil- 
dren or their heirs. From Johnson's report was taken the 
proposition of appointing a governor, council, secretary, and 
court, nearly the same language being used in defining their 
duties. A House of Representatives was also to be chosen 
when the population of a district reached five thousand. A 
delegate to Congress, with the right of debating but not of 
voting, as proposed by Jeft'erson and Monroe, was conceded 
to the States until admitted to full representation. 

That portion of the Ordinance which related to the time 
when the States would be under a temporary form of gov- 
ernment was followed by six articles which it declared 
should be considered as a compact between the original 
States and the people and States in the territory, and to 
forever remain unalterable unless by common consent. 
This idea was taken from Jefterson's report of 1784. 

The first and second articles were evidently copied from 
the Bill of Rights of one or more of the original States. 
They secured to the people civil and religious liberty, trial 
by jury, and the benefit of the writ of habeas corpus. Here 
it was also said that no law ought ever to be made or have 
force in the territory that should interfere or aft'ect private 
contracts or engagements previously formed. 

The third declared that religion, morality, and knowledge 
are necessary for good government and the happiness of 
mankind, and schools and the means of education should 
forever be encouraged. It also provided that good faith be 
observed towards the Indians. 

The fourth article contained, in substance, the six pro- 
visions in Jefierson's report, together with that securing 
navigation of the waters leading into the Mississippi and 
the St. Lawrence. 

The fifth provided for the division of the territory into 
not less than three nor more than five States. When a 
State contained sixty thousand free inhabitants its delegates 
were to be admitted into Congress on an equal footing with 



The Ordinance of 1787. 15 

those of the original States. Its permanent constitution 
was then to be formed, which was to be republican, and in 
conformity with the principles of the Ordinance. 

The sixth article was that which forever prohibited slavery 
in the territory. The language used was that of King's 
original resolution, coupled with the fugitive slave clause, 
taken from the report of the committee to which his reso- 
lution had been referred. This article was added on the 
second reading of the bill. 

The most minute contemporaneous account we have of 
what was done in Congress while the Ordinance was being 
considered is in a letter from Nathan Dane to Rufus King, 
then in Philadelphia, dated July 16, 1787. In it he enclosed 
him a copy of the act, and said, " We have been employed 
about several objects, the principal of which have been the 
government enclosed and the Ohio purchase ; the former, 
you will see, is completed and the latter will probably be 
completed to-morrow. We tried one day to patch up M.'s 
p system of W. government, started new ideas and com- 
mitted the whole to Carrington, Dane, R. H. Lee, Smith, 
and Kean. We met several times, and at last agreed on 
some principles ; at least Lee, Smith, and myself. We found 
ourselves rather pressed. The Ohio Company appeared to 
purchase a large tract of the federal lands — about six or seven 
millions of acres — and we wanted to abolish the old system 
and get a better one for the government of the country, 
and we finally found it necessary to adopt the best system 
we could get. All agreed finally to the enclosed plan except 
A. Yates. He appeared in this case, as in most others, not 
to understand the subject at all." [Mr. Dane then gives his 
views on the division of the territory and the population 
necessary for the admission of a State, and continues], 
" When I drew the Ordinance (which passed a few words 
excepted as I originally formed it), I had no idea the States 
would agree to the sixth article prohibiting slavery, as only 
Massachusetts, of the Eastern States, was present, and there- 
fore omitted it in the draft ; but finding the house favorably 
disposed on this subject, after we had completed the other 



16 The Ordinance of J7S7. 

parts I moved the article, which was agreed to without op- 
position. We are in a fair way to fix tlie terms of our Ohio 
sale, etc. We have heen upon it three days steadily. The 
magnitude of the purchase makes us very cautious ahout 
the terms of it, and the security necessary to insure the 
performance of it."^ 

The day after the letter was written, Dr. Cutler returned to 
New York from Philadelphia, and renewed his negotiations 
with Congress, and it was not until the 19th that he was fur- 
nished with a copy of the Ordinance. " It is," he wrote, " in 
a degree new modeled. The amendments I proposed have 
all been made except one, and that is better qualified." It 
was regarding Congressional taxation and representation. 

This in brief is all the contemporaneous evidence there 
is, and the reader has before him an epitome of everything 
of that character on which the conclusion is based, that Dr. 
Cutler and his colleagues were virtually the authors of the 
Ordinance of 1787. In reviewing it, we wish it distinctly 
understood that we would gladly accord to Dr. Cutler all 
the honor that has been claimed for him were it not that we 
consider such a verdict at variance with tlie truth of history 
and unjust to many others who did much to create the 
Ordinance. 

The Ohio Company was without doubt the outcome of 
the proposition that was made by the officers of the army 
in 1783 to establish a new State in which slavery should be 
unknown and in Avliich religion and education should be 
encouraged, as some of the men prominent in the old 
scheme were prominent in the new. The circumstances, 
however, under which the Ohio Company was formed were 
very different from those that existed in 1783. Then there 
were no provisions for the government of the territory or 
for the sale of land, but in 1784 a resolution for the former 
passed Congress, and in 1785 an ordinance for the latter 
was adopted. Consequently, when the Ohio Company was 
formed it did not propose to establish a new State, but to 
^ Bancroft's " History of the Constitution," Vol. II. p. 430. 



The Ordinance of 1787, 17 

purchase land in one of those that it was proposed to erect 
under the resolution of April 23, 1784, and their purchase 
was to be made in accordance with the land ordinance of 
May 20, 1785. 

There is nothing but argument to support the assertion 
that the government of the territory was the subject of con- 
versation between Cutler and Putnam and Cutler and Par- 
sons when the good doctor was on his way to seek an inter- 
view with Congress. This argument is based on the entries 
in Cutlers's diary that with Putuam he settled the principles 
on which he was to contract for lands, and that it was nine 
o'clock on the morning of July 2, before General Parsons 
and he had settled all matters with respect to his business 
with Congress. We do not see that the language here used 
indicates that anything but pecuniary matters were the sub- 
ject of discussion, and to assert otherwise is, we think, going 
beyond safe historical conclusions. The interviews, it will 
be noticed, were brief. With Putnam Cutler spent but the 
portion of a day ; with Parsons he remained longer, but the 
greater part of the time being Sunday was occupied in 
preaching for and visiting Mr. Huntington. And here let 
us ask. Which is the most probable, that this instrument, so 
admirably suited for the work it was to perform, whose 
wisdom has called forth such unstinted praise, and which 
exercised so powerful an influence in shaping the destinies 
of the country, — which is the most probable, that this should 
have been the result of the hasty visits that Cutler paid to 
Putnam and Parsons, or the work of a deliberative body, 
appointed for the purpose, composed of men some of whom 
had already given the matter serious attention, and all more 
or less familiar with the character of the work required, 
having at their command the archives of Congress contain- 
ing the record of all that Congress, or the committees of 
Congress, had ever done in the matter ? 

There is not a scintilla of evidence that Dr. Cutler ever 
made the adoption of what are claimed as his views in the 
ordinance of 1787 a sine, qua non in the purchase of land. 
Great stress has been laid upon the frequent mention made 



18 The Ordinance of 1787. 

in his diary of his conferences with the committee, but the 
committee thus alluded to was the one to which his memo- 
rial for the purchase of land had been referred. He makes 
no mention of the committee having the ordinance for the 
government of the territory in charge. He merely says Con- 
gress was now engaged in settling the form of government 
for the Federal territory. 

When Dr. Cutler returned to New York after visiting 
Philadelphia he renewed his negotiations for the purchase 
of land. On several occasions he despaired of bringing 
them to a successful conclusion, and threatened to withdraw 
his offer and purchase of some of the States having unoc- 
cupied land for sale. These threats the Doctor confessed 
were only " bluff," but it has been argued that they were to 
induce Congress to incorporate his views in the Ordinance 
for the government of the territory. Nothing can be farther 
from the truth. When Dr. Cutler returned to New York 
on the 17th of July the Ordinance was a law, and after its 
final passage no attempt was made for years to alter it in 
any way whatever. 

The strongest evidence there is to show that Dr. Cutler 
exercised any influence in the formation of the Ordinance 
of 1787 are the entries in his diary that a draft of the plan 
proposed for the government of the territory was sent to 
him and he was invited to make remarks on it and propose 
amendments; that he did so, and after the final passage of 
the Ordinance found that with one exception all that he had 
suggested had been incorporated in it. Sixty-five years 
after the Ordinance had passed, Dr. Cutler's son said that his 
father had told him in the winter of 1804-5 that that por- 
tion relating to the prohibition of slavery had been prepared 
by him. A copy of the Ordinance is also said to have been 
seen in the papers of the Ohio Company, with a memoran- 
dum on it that the provisions relating to religion, education, 
and slavery were inserted at Dr. Cutler's instance. This is 
not good historical evidence ; but suppose it all true, does it 
show anything but that he suggested what had been again 
and again before Congress for its consideration ? 



The Ordinance of 1787. 19 

It is also claimed that it was absolutely necessary for the 
success of the undertaking that the law for the government 
of the territories should be in perfect accord with New 
England ideas, and that New England men would not have 
gone there if slavery had not been prohibited and civil and 
religious liberty secured as they were under the Massachu- 
setts constitution of 1780. Unfortunately for the argument, 
the Association entered into by the members of the Ohio 
Company contradict it. The company was formed March 
3, 1786, to purchase land mthe Ohio country under the land 
ordinance of May 20, 1785. No provision was made for the 
purchase of land anywhere else, and at that time the terri- 
tory was under the government of Jefferson's resolution of 
1784, and by it (as passed) slavery was not prohibited or 
civil and religious liberty secured.^ On May 30, 1787, Put- 
nam and Cutler, writing to Sargent, said, if they could not 
secure the land they had in view, " we think of giving up 
the idea of making a purchase as a company." Nowhere 
in their correspondence, or in the journal of Cutler, is there 
the slightest hint that the government of the territory, or 
the admission of slavery into it, would influence their action, 
nor in the pamphlets issued by the Ohio and Scioto Compa- 
nies do we find this feature of the Ordinance dwelt upon 
as one that would encourage emigration. 

So far from Dr. Cutler's considering the prohibition of 
slavery in the territory an essential matter that would in- 
fluence him in purchasing land of Congress, it does not 
appear to us that it had any weight with him whatever. If 
it had been otherwise we do not believe he would have 

^ It was well, indeed, for the future of the Northwest territory that the 
question of admitting slavery into it was not allowed to rest on the un- 
certain language of the Massachusetts constitution of 1780. The only 
clause in it touching on slavery is the first article of the Declaration of 
Rights, declaring that " all men are born free and equal, and have cer- 
tain natural essential and inalienable rights." The same clause is to be 
found in the constitutions of several of the other States and in the Dec- 
laration of Independence. But nowhere else was the construction 
placed on it that it abolished slavery, and it was not until 1783 that that 
conclusion was reached in Massachusetts. 

2 



20 The Ordinanee of 1787. 

chosen the very time the question was coming up before 
Congress for consideration to have left New York and 
visited Philadelphia. Dr. Poole acknowledges this, but 
thinks that Dr. Cutler knew the disposition of the commit- 
tee and of Congress, and was confident that the Ordinance 
would contain the article prohibiting slavery. Setting aside 
the improbability of Dr. Cutler being able to obtain the 
sense of Congress on a bill that had not been framed, or of 
his attempting such a piece of lobbyism, we have incontro- 
vertible evidence that when the Ordinance was presented to 
Congress the article prohibiting slavery was not in it. Dr. 
Poole thinks that the article was agreed upon in the com- 
mittee, and was omitted by Dane, who restored it when on 
the second reading he found the House would consider it 
favorably. This is supported by the language of Dane's 
letter to King of July 16, which reads : " When I drew the 
Ordinance (which passed a few words excepted as I origi- 
nally formed it), I had no idea the States would agree to the 
sixth article prohibiting slavery, as only Massachusetts, of 
the Eastern States, was present, and therefore omitted it in 
the draft ; but finding the house favorably disposed on this 
subject, after we had completed the other parts I moved the 
article, which was agreed to without opposition." Before 
writing this, however, Dane said that the subject of the 
government of the Western territory had been discussed 
by Congress, that new ideas had been started and the 
whole sent to a committee. That the members met several 
times, "and at last agreed upon some principles." Now, 
if it had been decided in the committee to report the article 
on slavery, is it probable that Dane would have taken the 
responsibility of omitting so important a feature ? Taking 
Dane's entire letter into consideration, it conveys the idea to 
our mind that the matter was called to the attention of the 
committee, and that it was either decided to omit it, or it was 
left an open question, and that Dane acted on his own re- 
sponsibility. 

With regard to the willingness of Congress to exclude 
slavery from the Northwest territory in 1787, after having 



The Ordinance of 1787. 21 

voted down Jefferson's resolution in 1784, the reason is 
clear so far as the earlier vote is concerned. Jefferson's 
ordinance was for the government of territory ceded, or to 
be ceded, to the United States by the individual States. 
His first draft provided for the division of territory as far 
south as the thirty-first degree of latitude, which would 
have included all of the present States of Kentucky, Ten- 
nessee, Alabama, and Mississippi. As enacted, only the 
territory north of the Ohio was divided into States, but the 
words " ceded or to be ceded" were allowed to remain. 
The Ordinance of 1787 was only for the government of the 
territory northwest of the Ohio River.^ 

From this it is obvious that the Southern States would not 
vote for Jefferson's proposition because it would have pro- 
hibited slavery in the Southwest when that country should 
be ceded to the general government, but when and why 
they were willing to accept the Ohio River as the division 
between slave and free territory is not so clear. That they 
would have done so in 1784 is doubtful. The next year, 
when King proposed to at once prohibit slavery north of 
the Ohio, the delegates of every State south of Maryland in 
Congress voted against it with the exception of Grayson of 
Virginia. Maryland gave two votes in its favor and one 
opposing it. Every State from there north (with the excep- 
tion of Delaware, which was not represented) voted unani- 
mously in favor of the proposition. From this it will be 
seen that at that time party lines were in accord with geo- 

^ Its title was copied from the amended title of Johnson's ordinance, 
which at first read, " For the Temporary government of the Western 
Territory of the United States." Amended, it read, "For the Tem- 
porary Government of the United States Territory North West of the 
Ohio River," and so read the Ordinance of 1787 witli the exception of 
the word temporary. Jefferson's proposition has been criticised by 
writers when considering the Ordinance of 1787, because it permitted 
slavery to exist in the Northwest until 1800, and it has been argued 
that to have allowed the institution to take root in the territory would 
have been a fatal mistake. The fact appears to have been overlooked 
that it was intended to have had effect over the Southern territory, 
where slavery did exist, and it is probable the sixteen years were al- 
lowed to permit the citizens to prepare for the change. 



22 The Ordinance of 1787. 

graphical lines. When King's resolutions had heen altered 
so as to permit slavery in the ISTorthwest until the close of 
the century, Grayson wrote, " I expect seven States may be 
found liberal enough to adopt it." About the same time, 
however, Charles Thomson, the secretary of Congress, said 
in a letter to Richard Peters that there was great dissatisfac- 
tion " on account of the backv^ardness in the Southern States 
to cede to the United States their claim to Western lands. 
And now it seems the measures necessary to be taken to 
render useful the cession and purchases made, are to be ob- 
structed by men of the South, because the East and North 
wish to keep slavery out of the new States." 

From the first agitation of the question, there were men 
in the South like Jefferson and Grayson, who would gladly 
have prohibited slavery, not only in the Northwest territory 
but in any territory that should ever come under the control 
of Congress. So also, there were Southerners like Carring- 
ton who with wonderful foresight saw, in the sale to the 
Ohio Company, the " means of introducing into the country, 
in the first instance, a description of men who will fix the 
character and politics throughout the whole territory and 
which will probably endure to the latest period of time." 
But these men were men of fixed principles. They did not 
join a majority, but a majority joined them, and it is for the 
causes that brought this about that we must look. 

The wonderful unanimity shown by the Southern members 
on July 13, 1787, in favor of the Ordinance is pretty good 
evidence that they thought Southern interests would be 
served by its passage. Grayson writing to Monroe twenty- 
six days after its passage said, " The clause respecting 
slavery was agreed to by Southern members for the purpose 
of preventing tobacco and indigo being made on the north- 
west side of the Ohio as well as for several other political 
reasons." Grayson's opinion on this point is worthy of 
great consideration. A Virginian himself, and at the time 
acting president of Congress, no one could have known 
better than he did the arguments that moved the Southern 
members. Nevertheless we think it must have been the 



The a-dinance of 1787. 23 

political reasons not specified that had the greatest weight. 
What they were we can only surmise. The financial condi- 
tion of the country made it important that no reasonable op- 
portunity should be lost to dispose of public lands, and it is 
certain that the final consideration of the Ordinance of 1787 
was precipitated by the offer of the Ohio Company to pur- 
chase a large tract. Grayson also thought that the settle- 
ments on the Ohio would shortly extend to the Mississippi, 
thus forming a barrier between the Indians and Kentucky, 
" greatly validating the lands on the" south of the Ohio. 

There was another political reason that undoubtedly had 
weight with Grayson, and may have influenced some of his 
followers, as it could not but affect a question of all-absorb- 
ing interest to the South. Between 1784 and 1787 the 
Southern States were greatly excited over the refusal of 
Spain to permit of a free navigation of the Mississippi. 
Their territory extended to that river, and they feared that 
unless their back settlements were allowed free access to 
the Gulf of Mexico they would cut loose from the Confed- 
eration and seek an alliance with Spain. It was evident 
that the North and the East would sacrifice the right to 
navigate the Mississippi for commercial privileges that 
would only benefit themselves. To overcome their pre- 
ponderance in Congress the South " neglected no opportu- 
tunity of increasing the population and importance of the 
Western territory," and hoped to draw there the inhabitants 
of New England " whose ungrateful soil . . . favored emi- 
gration." By this means they expected in a short time to 
increase the Southern vote in Congress. That these were 
their aims in 1786 is asserted by Otto, the French charge at 
New York, in a letter to Vergennes.' Otto came into con- 

^ " The Southern States," wrote Otto, " are not in earnest when they 
assert that without the navigation of the Mississippi the inhabitants of 
the interior will seek an outlet by way of the lakes and will throw them- 
selves into the arms of England. They know too well the aversion of 
their compatriots to that power, and the difficulty of conveying heavy 
cargoes through the rivers which lead to Canada. But the true motive 
of this vigorous opposition is to be found in the great preponderance of 
the Northern States, eager to incline the balance toward their side ; the 



24 The Ordinance of 1787. 

stant contact with the Southern members, and watched with 
jealous interest everything touching the relationship of 
Spain with the United States and reported it to his master. 
When he wrote of the South endeavoring to increase the 
population of the "Western territory he evidently spoke of 
the Southwest territory, as no settlements of importance 
had been made north of the Ohio. If the South was actu- 
ated by these motives in 1786 in order to secure the freedom 
of the Mississippi, and quiet the dissatisfection in its West- 
ern territory, is it not highly probable that it would have 
followed the same course towards the Northwest in 1787, 
under the supposition that when that country, watered by 
the tributaries of the Mississippi, was settled, the inhabi- 
tants, no matter where from, would affiliate with them in 
demanding the right to float with the current of the Missis- 
sippi to the sea ? 

That these reasons influenced Grayson are evident from 
his speeches made in the Virginia Convention to consider 
the Federal Constitution, just one year after the passage of 
the Ordinance of 1787. In them he so clearly echoes the 

Southern neglect no opportunity of increasing the population and im- 
portance of the Western territory and of drawing thither by degrees the 
inhabitants of New England, whose ungrateful soil only too much favors 
emigration. Rhode Island has already suffered considerably from the 
new establishments of Ohio, and a great number of families daily leave 
their homes to seek lands more fertile and a less rigorous climate. This 
emigration doubly enfeebles New England, since on the one hand it 
deprives her of industrious citizens, and on the other it adds to the pop- 
ulation of Southern States. These new territories will gradually form 
themselves into separate governments ; they will have their representa- 
tives in Congress, and will augment greatly the mass of the Southern 
States. 

" All these considerations make evident to the South the necessity of 
promoting by all sorts of means their establishment in the West, and 
from this point of view a treaty with Spain appears to them most de- 
sirable. But if this treaty contains only stipulations in favor of Northern 
fisheries, far from strengthening themselves against the too great prepon- 
derance of the Northern States, they would furnish them with new arms, 
by increasing their prosperity and the extension of their commerce." — 
Otto to Vergennes, September 10, 1786, Bancroft's " History of the 
Constitution," Vol. II., p. 392. 



The Ordinance of 1787. 25 

sentiments expressed in Otto's letter that the conclusion is 
irresistible that he was Otto's authority. His remarks in 
the convention were called forth by the fear that under the 
provision in the Federal Constitution for making treaties 
the Mississippi would not be as safe as under the Arti- 
cles of Confederation, " If the Mississippi was yielded to 
Spain," he said, " the migration to the western country 
would be stopped and the Northern States would not only 
retain their inhabitants, but preserve their superiority and 
influence over those of the South. If matters go on in 
their present direction there will be a number of new States 
to the westward — population may become greater in the 
Southern States — the ten miles square may approach us ! 
This they [the Northern States] must naturally wish to 
prevent."^ 

" Their language [the Eastern States] has been let us 
prevent any new States from rising in the western world, 
or they will outvote us. . . . If we do not prevent it, our 
countrymen will remove to those places instead of going to 
sea, and we shall receive no particular tribute or advantage 
from them."^ 

" If things continue as they now are," he argued, " emi- 
gration will continue to that country. The hope that this 
great national right will be retained, will induce them to go 
thither. But take away that hope by giving up the Missis- 
sippi for twenty-live years and the emigration will cease. "^ 

" When the act of Congress passed respecting the settle- 
ment of the western country, and establishing a State there, 
it passed in a lucky moment.* I was told that that State 
[Massachusetts] was extremely uneasy about it; and that in 
order to retain her inhabitants lands in the province of 
Maine were lowered to the price of one dollar per acre."^ 

" If the Mississippi be shut up emigration will be stopped 
entirely. There will be no new States formed on the western 

» Elliot, III., 292. ^ Ibid., 343. ' Ibid., 349. 

* But one Eastern State was represented. Dane could not understand 
why, when such was the case, the anti-slavery clause passed. 
» Elliot, III., 350. 



26 The Ordinance of 1787. 

waters. This will be a government of seven States. This 
contest of the Mississippi involves this great national contest ; 
that is whether one part of the continent shall govern the 
other. The Northern States have the majority and will en- 
deavor to retain it. This is, therefore, a contest for dominion 
— for empire."* 

Arguing on the other side that the Mississippi would be 
safe under the Federal Constitution, George Nicholas said, 
and in these views Madison coincided : " The people of New 
England have lately purchased great quantities of land in 
the western country. Great numbers of them have moved 
thither. "Every one has left his friends, relations, and ac- 
quaintances behind him. This will prevent those States 
from adopting a measure that would so greatly tend to the 
injury of their friends." '^ 

Madison's language was : " Emigrations from some of the 
Northern States have been lately increased. "We may con- 
clude, as has been said by the gentleman on the same side 
(Mr. Nicholas), that those who emigrate to that country will 
leave behind them all their friends and connections as advo- 
cates for this right. . . . The Western country will be settled 
from the North as well as the South, and its prosperity will 
add to the strength and security of the Union." ^ 

Dr. Cutler says in his journal, under date of July 27, 
1787: " The uneasiness of the Kentucky people with respect 
to the Mississippi was notorious. A revolt of that country 
from the Union if a war with Spain took place, was univer- 
sally acknowledged to he highly probable. And most cer- 
tainly a systematic settlement of that country, conducted by 
men strongly attached to the Federal government, and com- 
posed of young, robust, and hearty laborers, who had no 
idea of any other than the Federal government, I conceived 
to be objects worthy of some attention." This and the 
effect that settlements north of the Ohio would have on 
the Indian question were the arguments he used in urging 
Congress to accede to his terms for the purchase of land. 

Now, when we find that in 1786 the South was endeavoring 

> Elliot, TIT., 365. ^ Ibid., 240, 312. » Ibid., 312. 



The Oi'dinance of 17S7. 27 

to draw New England men to the Southwest with a view of 
increasing Southern influence in the confederation and ren- 
dering their back settlements more secure ; when we find 
that in 1787 Dr. Cutler was arguing that the settlement of 
the Northwest would strengthen the bonds that bound the 
Kentucky settlements to the Union ; when we find that in 
1788 Grayson, of Virginia, was strenuously arguing that if 
the Mississippi was closed emigration to the Northwest 
would cease, and the South would sink into a hopeless 
minority in Congress ; when we remember that Grayson 
was the moving spirit on the floor of Congress when 
the Ordinance of 1787 was passed, is it not obvious that 
the South voted for the Ordinance containing the anti- 
slavery clause to bring about a settlement of the Missis- 
sippi question in accordance with their interests ? That this 
was a concession to Northern and Eastern sentiments is 
shown by a comparison of the vote on King's motion with 
that on the Ordinance, but there is no evidence to show that 
it was the result of a demand. Indeed, as far as the evi- 
dence goes, it indicates that the South voluntarily aban- 
doned its position. Dane's letter to King shows that the 
Ordinance committee did not entertain a positive opinion re- 
garding the anti-slavery clause, or it would have been in its 
report. It was not until the report had reached a second 
reading that Dane discovered that the House was " favor- 
ably disposed on the subject." The House at that time was 
composed of the representatives of five Southern and three 
Northern States, and it does not seem likely that Dane 
would have drawn such an inference from the opinions 
of a powerless minority. 

The general impression we believe is that the ordinance 
fostered religion and education in the same effective manner 
in which it protected the soil from slavery. An examina- 
tion of the document will show that it contains nothing that 
would have either encouraged or developed the one or the 
other without additional legislation. All that is found in it 
is that " Religion, morality, and knowledge, being necessary 
to good government and the happiness of mankind, schools 



28 The Ordinance of 1787. 

and the means of education shall forever be encouraged." 
It also declared that the laws and constitutions of the States 
rested on the fundamental principles of civil and religious 
liberty, and to fix these principles as the bases of the laws 
and constitutions of the proposed States was one of the 
objects of the Ordinance. The legislative provision for the 
encouragement of education is found in the Land Ordinance 
of 1785, and when we remember that in framing it, Con- 
gress refused to reserve land for the encouragement of 
religion, is it not evident that it intentionally omitted to 
provide for its encouragement in the Ordinance for the gov- 
ernment of the entire Northwest territory, and contented 
itself with the expression of the abstract idea that religion 
was essential for the good government and happiness of 
mankind, thus leaving what Dr. Schaft' calls " a free church 
in a free state, or a self-supporting and self-governing 
Christianity in independent but friendly relations to the 
civil government?" 

The Land Ordinance of 1785 and the record of its forma= 
tion show that the encouragement of education and religion 
in the territory by government aid were subjects that had 
been discussed two years before the Ordinance of 1787 was 
framed. 

The expression of these abstract ideas, however, was made 
good use^of by Dr. Cutler, who succeeded in inducing Con- 
gress to extend to the Ohio Company the same provision 
for the support of schools to which the purchasers under 
the Ordinance of 1785 were entitled. He also obtained a 
grant of two townships for the establishment of a university 
and one lot in each township purchased by the company 
for the encouragement of religion. These provisions are 
found in the agreement with the Ohio Company. They 
formed no part of the organic law and were only extended 
to one or two other purchasers. 

How generally the principles expressed in the Ordinance 
regarding education, religion, and slavery were entertained 
by men prominent in Congress is shown by the fragments of 
their correspondence that has been preserved. " It is cer- 



The Ordinance of 1787. 29 

taiiily true," wrote liichard Henry Lee in 1784 (a mem- 
ber of the Ordinance Committee of 1787), " that a popular 
government cannot flourish without virtue in the people, 
and it is true that knowledge is a principal source of virtue ; 
these facts render the establishment of schools for the 
instruction of youth a fundamental concern in all free 
communities." 

In 1785, Charles Thomson, the secretary of Congress, said, 
" If it is or ought to be the object of government not merely 
to provide for the necessities of the people, but to promote 
and secure their happiness, and if the felicity or happiness 
of a people can only be promoted and secured by the exer- 
cise of humanity, virtue, justice, and piety, it would be 
unpardonable in Congress in creating new States, not to 
guard against the introduction of slavery, which has a direct 
tendency to the corruption of manners, and every principle 
of morality or piety." 

That Dr. Cutler, in dealing with Congress, made use of 
the argument that the men he expected to settle in the ter- 
ritory were a class whose education and moral training was 
such as to entitle them to consideration is hypothetical. 
His friend Richard Henry Lee, who advocated his proposed 
purchase in Congress, and who was a member of the Or- 
dinance Committee, wrote to Washington two days after 
it had passed, " It seemed necessary for the security of 
property among uninformed and perhaps licentious people, 
as the greater part who go there are, that a strong-toned 
government should exist." Lee's information regarding the 
character of the members of the Ohio Company was without 
doubt less accurate than Carrington's, but his letter shows 
that the argument attributed to Dr. Cutler did not convince 
all of the members of the committee, and justifies the doubt 
if he ever made it. 

With all of this evidence before us it is no easy matter to 
award to each one who participated in the formation of the 
Ordinance their share of credit, nor is it likely that the 
result of any efl:brt made in that direction will be considered 
as final. 



30 The Ordinance of 1787. 

Pickering's proposition in 1783 to erect a new State in 
the Western territory in which slavery should be unknown, 
Jefferson's effort to prohibit slavery in any portion of the 
territory after the year 1800, King's resolution in 1785 to im- 
mediately forbid its existence in any of the proposed States 
show that they voiced a general anti-slavery sentiment that 
doubtless had gained strength by the discussion of the spirit 
of liberty that the struggle for independence had called 
forth. The idea, however, of applying this sentiment to 
limit slavery to the original States appears to have origi- 
nated with Pickering and Jefferson, and in view of the 
results their services should not be forgotten. 

To Nathan Dane we would accord a much higher place 
than that of a scribe. He appears to us to have been rather 
the intelligent compiler. He was familiar with the action 
of Congress on territorial affairs. It was on his motion 
that the committee appointed in 1786, of which Monroe 
was chairman, for reporting a government for the Western 
States, and in September he was made a member of that 
committee. He was also a member of Johnson's com- 
mittee, and while on it, with the assistance of Pinckney, 
drafted the report presented on May 9, 1787. In his letter 
to King, written three days after the passage of the Ordi- 
nance, he says he drew it, and that it passed, a few words 
excepted, as he originally formed it. This would be con- 
clusive regarding authorship were it not for his subsequent 
statements and the proof we have that much of it was the 
work of others, which leads to the supposition that he did 
not intend to claim originality, but construction. 

In the seventh volume of his " Abridgment of American 
Laws," he wrote : " This Ordinance, formed by the author 
of this work, was framed mainly from the laws of Massa- 
chusetts, especially in regard to land titles," etc. 

In a note to the ninth volume, 1829, he says, " On the 
whole, if there be any praise or any blame in the Ordinance, 
especially in the titles of property and in the permanent 
parts," those that would not be changed by the admission of 
a State into the confederation, " it belongs to Massachusetts, 



The Ordinance of 1787. 31 

as one of her members formed it." He says he took from 
Jefferson's resolves in substance the six provisions in the 
fourth article of compact, and the words of the slave article 
from Mr. King's motion of 1785. " As to matter, his in- 
vention," he says, " furnished the provision respecting im- 
pairing of contracts and the Indian security, and some other 
smaller matters; the residue, no doubt, he selected from 
existing laws." 

In 1830, in a letter to Daniel Webster, he said, " I have 
never claimed originality^ except in regard to the clause 
against impairing contracts, and perhaps the Indian article, 
part of the third article, including also, religion, morality, 
knowledge, schools, etc." 

In 1831, in writing to John H. Farnham, he endeavored 
to establish his claim to having first thought, in 1787, of re- 
newing the effort to exclude slavery from the Western ter- 
ritory. He spoke disparagingly of the attempts of Jeffer- 
son and King, and said, " When the Ordinance of 1787 was 
reported to Congress, and under consideration, from what 
I heard I concluded that a slave article might be adopted, 
and I moved the article as it is in the Ordinance." Indeed, 
Dane does not appear to have remembered how much he 
was indebted to the circumstances and men that surrounded 
him for what he put in the Ordinance. His claim to some 
of the very parts that he said were original are easily 
invalidated. 

The Indian article had really nothing new in it. The 
land ordinance provided for the sale of lands only after 
they had been purchased from the Indians, and, more than 
a century before, William Penn had proposed to enact laws 
for the protection of the Indians. Pelatiah Webster, in 
1781, writing regarding the Western lands, pointed out the 
importance of cultivating a " good and friendly correspond- 
ence with the Indian natives, by a careful practice of justice 
and benevolence towards them." 

It has been customary to attribute to Dane the clause against 
impairing contracts, and it has been suggested that its ne- 
cessity was made evident to him by Shay's Rebellion in 



32 The Ordinance of 1787. 

Massachusetts ; but Mr. Bancroft calls attention to the fact 
that views similar to his were held by his colleague, Richard 
Henry Lee, and it is probable that the honor should be 
divided. It is a very serious obstacle to the acceptance of 
Dane's statements that he should have said that he origi- 
nated the clauses relating to religion, morality, knowledge, 
schools, etc., while we know that these suggestions had 
already been considered by Congress. Nevertheless, as we 
have said, we believe him to be entitled to a higher place 
than that of a scribe. He does not seem to have originated, 
but to have written with a well-stored mind, and to have 
drawn from his surroundings what was best suited to the 
purpose. To us it appears that he had more to do with the 
framing of the Ordinance than any other man. 

In speaking of the passage of the amendment prohibiting 
slavery, Mr. Bancroft says, " Everything points to Grayson 
as the immediate cause of the tranquil spirit of disinterested 
statesmanship which took possession of every Southern man 
in the Assembly." That he possessed great influence in 
Congress, and exerted it to the utmost in favor of the Ohio 
purchase, is attested by Cutler's diary. Knowing his senti- 
ments, we believe that he favored the Ordinance also, as 
by doing so he would have advanced two cherished objects, 
the limitation of slavery and the freedom of the Missis- 
sippi River. In 1819, Taylor, of New York, in a debate 
on the admission of Missouri, quoted Hugh Nelson, of Vir- 
ginia, as having said that in the convention of 1787 Grayson 
drew the Ordinance excluding slavery from the Northwest 
territory. While it is probable that the use of the word con- 
vention in place of Congress was a lapsus linguce on the part of 
either Nelson or Taylor, the statement was evidently a loose 
one that cannot be considered when it is confronted with 
the facts that Grayson was not on the Ordinance committee, 
and that Dane, three days after it passed, said that he drew 
it. That Grayson was in any sense of the word the author 
of the clause prohibiting slavery seems impossible. The 
language is that of King's motion of 1785. Dane says he 
copied it from there, and the original is in Dane's hand- 



The Ordinance of 1787. 33 

writing. The tradition, however, is of interest, as it connects 
Grayson's name with the clause, and may have grown out of 
the zeal he took in securing the passage of the Ordinance. 

Manasseh Cutler undoubtedly suggested, at an opportune 
moment, that certain features be added to the Ordinance 
that he failed to find in it when it was submitted to him 
for criticism. What they were there is no contemporaneous 
evidence to show, but the entry in his diary that after the Or- 
dinance had passed he found all of his amendments, but one, 
had been adopted is proof that they are there. Heresay 
and after-evidence affirm positively that these were the 
parts relating to religion, education, and slavery, and Dr. 
Cutler's successful efforts to obtain from Congress land 
grants for the support of the first two uphold the assertion. 
That he suggested the anti-slavery clause rests on tradition 
alone. There was certainly nothing original regarding the 
suggestions, in connection with Territorial government, 
and the credit of having recalled them at a critical time 
is all that can be awarded to him. With the suggestions 
that his diary says he made, we believe the services of 
Dr. Cutler in the formation of the Ordinance began and 
ended. There is nothing to show that when he came to 
!New York he expected to have the Ordinance submitted 
to him, or that he had prepared anything to insert in it ; 
nothing to show that having made the suggestions he ever 
attempted to force their adoption on Congress. The entry 
in his diary appears to cover all of his transactions in the 
matter with Congress, — namely, that a copy of the Ordi- 
nance was submitted to him with permission to make re- 
marks and propose amendments ; that he did so, returned 
it, and left New York for Philadelphia. 

The fact is, the Ordinance was a political growth. Step 
by step its development can be traced in the proceedings of 
Congress. Monroe's plan, imperfect as it was in form when 
reported, provided for a more advanced state of civilization 
than Jefferson's, and in some respects was an improvement 
on it. Johnson's ordinance was an elaboration of Monroe's 
plan. The Ordinance of 1787 contained the most important 



34 The Ordinance oj 1787. 

features of each, together with suggestions that had been 
made from time to time, and what could be found in the 
constitutions and laws of the States, There is no necessity 
of going outside of Congressional circles to account for its 
production or passage. It was formed in an era of con- 
stitution-making. The separation of the colonies from the 
mother-country had made the people familiar with the prin- 
ciples of civil liberty. Between 1776 and 1787 every one 
of the States, with the exception of Connecticut and Rhode 
Island, had formed new constitutions for their government. 
There was hardly a man in public life who had not assisted 
in some way in their adoption, and who was not familiar 
with their principles. Hundreds of essays on government 
were made public by the newspapers or in pamphlet form. 
The political atmosphere was impregnated with the subject, 
and it is doubtful if there ever was a time when the people 
of a country were more familiar with the principles of 
government than were the inhabitants of the United States 
in 1787. To announce what at any other time might be 
looked upon as an original thought appeared only to echo 
an axiom. The discussion brought forth legitimate results, 
and while Congress was creating the Ordinance of 1787, 
the representatives of the States, assembled in another city, 
were engaged in the formation of the Federal Constitution. 

[For copies of original papers and letters consulted in preparing the 
above, the writer is indebted to Dr. Austin Scott, of Eutgers College, 
Mr. Theodore Dwight, Mr. Frederick Bancroft, and Mr. S. M. Hamilton, 
of the Department of State.] 



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